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In a unanimous ruling, the New Jersey Supreme Court for the first time recognized morbid obesity as a handicap under the Law Against Discrimination, though the court overturned a plaintiff’s verdict due to faulty jury instructions. The justices on Thursday affirmed an Appellate Division ruling that a 400-pound woman who suffered from a genetic metabolic disorder proffered sufficient expert testimony and other evidence to meet the statute’s two-prong test for proving a physical handicap. “According to her expert, she is morbidly obese, that is, suffering from disease or pathology as a result of her obesity, and … her obesity-based arthritis, heart condition and obstructive lung disease are clearly ‘physical infirmities’ under the first prong of the physical handicap test,” wrote Justice Virginia Long in Vicsik v. Fowler Equipment Company, A-38-01. As for the second prong — that the infirmity be caused by bodily injury, birth defect or illness — expert testimony proved that the “metabolic condition is genetic, that she suffered from it since birth, and that it is a direct cause of the obesity-based infirmities,” Long wrote. The opinion is the first by the court establishing obesity as a handicap. The only other published appellate ruling on point is Gimello v. Agency Rent-A-Car-Systems, Inc., 250 N.J. Super. 338, 362 (App. Div. 1991), which also found that an obese plaintiff was handicapped. Gimello was only the second reported case in the country to do so. New York was the first, in 1985. “To me it was a no-brainer,” says Christopher Kelly of the finding that his client, Regina Vicsik, proved a physical handicap. “ Gimello made it pretty clear that obese persons could be considered handicapped under certain circumstances,” adds Kelly, a partner with Westfield, N.J.’s Reppert Kelly. Vicsik, of Elizabeth, N.J., was 43 when she was fired in July 1998 from her position as a billing clerk at Fowler Equipment Company in Union, N.J., which sells and services laundry equipment. It was her fourth day on the job. The company claimed it discharged her for poor work ethic and for using the office telephone for personal calls. At the time, Vicsik carried about 400 pounds on her 5-foot-9-inch frame as the result of a genetic metabolic disorder. She had arthritis in her hips and knees, restricted lung capacity and depression brought on by the weight, and asthma and bronchitis that were “complicated” by her size. Her doctor, Jung-San Shen, testified that his diagnosis was “morbid obesity.” A key part of her work was contacting technicians in the field via a fax machine and a two-way radio that were located in the same building though at “some distance” from Vicsik’s desk. As Vicsik informed a supervisor her second day on the job, her bad knee and arthritis, together with her weight, kept her from moving quickly around the office and sometimes necessitated use of a cane. There was testimony supporting Vicsik’s contention that she was discharged because of her lack of mobility. Supervisor Joyce Killmer, who told Vicsik she was fired, testified she was told to do so after reporting to Helene Fowler, the owner’s wife and office administrator, that Vicsik had difficulty standing while waiting for someone to train her in retrieving faxes. Killmer also said that, in telling her to fire Vicsik, Helene Fowler did not mention work ethic or telephone use. Other employees, as well as Fowler herself, testified they observed Vicsik making personal phone calls. To meet the LAD’s definition of a physical handicap, a plaintiff must prove that he or she is (1) suffering from physical disability, infirmity, malformation or disfigurement (2) which is caused by bodily injury, birth defect or illness. N.J.S.A. 10:5-5(q). The statute lists as examples paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair or other remedial appliance or device. The justices noted the greater flexibility of the term “handicapped” under the LAD than under the analogous federal Americans with Disabilities Act. “The term ‘handicapped’ in LAD is not restricted to ‘severe’ or ‘immutable’ disabilities” because the statute “does not incorporate the requirement that the condition result in a substantial limitation on a major life activity,” the justices wrote, citing Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998). In addition to the expert testimony adduced, the justices said that Vicsik “testified about the limits that her morbid obesity imposes in relation to her knee. She verified her inability to move around quickly and need for a cane. She also explained the effects of her asthma and shortness of breath. Dr. Shen, moreover, attested to each of those limitations. We are satisfied, therefore, as was the Appellate Division, that the evidence supported the jury’s finding with regard to Vicsik’s handicap.” Because of faulty jury instructions, though, the court threw out the $50,000 in damages and nearly $90,000 in attorney fees the plaintiff won at trial. The key error was Superior Court Judge Rudy Coleman’s repeated references in the jury charge to the employer’s duty to reasonably accommodate Vicsik’s disability even though it was not an issue in the case. “This was a pretext case and not a reasonable accommodation case and the law clearly distinguishes between those two theories,” wrote Long. Vicsik did not allege failure to accommodate or that she ever requested an accommodation, and Fowler Equipment Co., the employer, never contended that a reasonable accommodation was impossible. “Rather, Fowler chose to stand or fall on the assertion that Vicsik’s work ethic was poor,” wrote Long. “If that contention was true, Fowler had no duty to reasonably accommodate her. If it was not true, and the jury determined that Vicsik was terminated because of her handicap, Fowler would be liable.” The court also found that Coleman erred in telling the jury to apply an objective standard to determine whether the stated reason for firing Vicsik was a pretext. The objective standard was proper on the second prong of the McDonnell-Douglas v. Green burden-shifting analysis — whether the employee was qualified for the job — but a subjective standard was appropriate in evaluating the employer’s motive for the discharge, the court said. As for the ruling’s coattails, plaintiffs’ lawyer Kelly does not see it as throwing LAD protection open to claims by every obese person, but only those who have health problems associated with the excess poundage. He expects that the courts will need to decide on a case-by-case basis. John Ridley, the attorney for Fowler, says the opinion is ambiguous on the scope of protection. It could even be read as protecting only obesity caused by a genetic or medical condition, but not obesity that is the result of overindulgence or lassitude, says Ridley, a partner with Newark, N.J.’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Ridley praises the court for clarifying the need for a subjective standard in evaluating the reason for termination. “An employer must be given the right to make its own business judgments,” he says.

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